A few days ago, William Stuntz wrote a terrific piece for New Republic Online about Justice O’Connor and former Justice Powell (for whom he clerked). The similarities between the two Justices are striking — both were difference-splitters, both liked standards more than rules, both usually cast the “swing” vote in close cases, and both disappointed conservatives by honoring liberal precedent and occasionally helping to create it. Mostly as a result of the last of these similarities, both received great praise from the MSM and liberal Washington at the end of their careers.
Stuntz disputes the praiseworthiness of the Powell-O’Connor judging style. In his view “self-restraint lies at the heart of good judging.” And self-restraint is what Powell and O’Connor came to lack, as they embarked on a quest to decide, case-by-case, which result made the most policy sense. It is this approach, not the “ideological” judging style, that Stuntz believes bears most of the blame for the current situation in which courts “exerise an astonishing degree of power over American governance and political life, a good deal more than is healthy in a democracy.”
Charles Krauthammer writes along the same lines today. And don’t miss Ann Coulter’s less measured take-down of O’Connor.
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